Abstract

One of the most distinctive features of Nazi society was the increasingly radical division of its members into “national comrades” and “community aliens.” The former were to be protected by the state and encouraged to procreate, while the latter were seen as political, social, racial, or eugenic threats and were to be ruthlessly eliminated from society. With the start of the Second World War, various nonlethal forms of discrimination against these “community
aliens” were gradually replaced by policies geared to physical annihilation, culminating above all in the extermination of the European Jews. In view of a crime of this previously unimaginable magnitude, it is hardly surprising that when historians started in earnest to examine the genocidal policies of the Nazi dictatorship in the 1960s they focused on the development and administration
of the “Final Solution of the Jewish Question,” as the Nazis called it.
But in the last two decades, the fate of other “community aliens” in the Third
Reich, such as the Roma and Sinti (“Gypsies”), slave laborers, and the disabled, has been investigated too.
Some historians have also begun to examine those who deviated in various
other ways from the norms of society, people who were often classified in the
Third Reich, and indeed before, as “asocials.” There was never an agreed definition as to who these people were, and the term was used to stigmatize a vast variety of nonnormative behavior. According to a 1938 directive by the head of the German security police, Reinhard Heydrich, any person could be classified
as “asocial” who “demonstrates through conduct opposed to the community
. . . that he does not want to adapt to the community.” During the Third
Reich, such vague statements served as the basis for the persecution of juvenile delinquents, criminal offenders, vagrants, prostitutes, and homosexuals, among many others. Certain groups were simultaneously classified as racial and social outsiders and thus suffered “dual racism.” This was true in particular for the Sinti and Roma, who had been persecuted for their way of life long before the Nazi “seizure of power” in 1933. Historical research into the fate of the “asocials” has produced some valuable insights into the treatment of members of these marginal groups in the Third Reich, many of whom died in SS concentration or extermination camps. Yet despite this growing interest, the most comprehensive of all the extermination programs directed against “asocials” in the Third Reich has never been investigated. From late 1942 onward, over twenty thousand offenders classified as “asocial” were taken out of the state penal system and transferred to the police for “annihilation through labor.” At least two-thirds of them perished in concentration camps. But in the historical literature this program has either been dealt with in passing or completely ignored.
Why have historians neglected the murder of state prisoners? There appears
to be a reluctance to focus on offenders against the law in the Third Reich, unless their offences can be seen in some way as forms of political or social protest. In contrast to the racially or politically persecuted, not all common criminals can be described merely as innocent victims, and the often brutal behavior of criminal Kapos in concentration camps probably further alienated historians from dealing with the criminals. Another factor that explains the poor state of research is the inaccessibility of source material. Leading officials in the Ministry of Justice made sure that most files relating to the “annihilation
through labor” of state prisoners were pulped before the end of the war.8 Yet
individual documents have survived, scattered around various archives in Germany. They can be complemented by information gained from individual prisoner files, as well as from unpublished documents and testimonies collected in numerous postwar legal investigations. None of these criminal investigations ever led to the conviction of the prison officials involved—another reason for the lack of historical interest. Finally, German legal history after the war spread
the myth that the legal administration had rejected or even resisted the Nazi
regime. State penal institutions, if dealt with at all, were described as safe havens that had “nothing to do with the concentration camps.” Thus, until today, historians have largely ignored the state prison system and its inmates. This article will first describe the origins of the decision in 1942 for the extermination of certain state prisoners. Then the actual process of transfer will be investigated in detail, examining issues such as the background of the
transferred inmates and the participation of prison officials. The article will also deal with the fate of the state prisoners after their transport to the Nazi concentration camps and the radicalization of policy against the prisoners remaining
in the state penal institutions. Exploring these issues contributes to
our knowledge of the treatment of deviants in the Third Reich.
But this article will also address some wider issues concerning the nature of the Nazi dictatorship, such as the origins of extermination policies in the Third Reich. In recent years, a number of historians have argued that it was time to move beyond the “sterile debates” between so-called intentionalist historians, who focused on the murderous will and ideology of the Nazi leaders, above all Hitler, and so-called structuralist historians, who pointed to the dynamic and uncoordinated interactions between different agencies of the Nazi dictatorship that led to a “cumulative radicalization” (Hans Mommsen). Various historians have now put forward a synthesis of both positions, while ground-breaking empirical research into the “final solution” has posed new questions and provided new answers. Still, many of the more recent studies of Nazi genocide continue to explore central issues first raised in the debates between intentionalists
and structuralists such as Hitler’s role in extermination policy, the interaction between regional officials and the decision makers in Berlin, and the role of racial ideology versus more material motives in Nazi mass murder. This study of the “annihilation through labor” of state prisoners addresses some of these general issues.
It will also shed new light on the relation between the judiciary and the
police in the Third Reich. The postwar portrait of a passive or even anti-Nazi
judiciary has not gone unchallenged. Still, many historians continue to describe the judicial authorities and the police as having been in a constant state of conflict. They describe the Third Reich as a “dual state,” split between the “prerogative state” and the “normative state.” The latter was the traditional state apparatus, ensuring that normal life was ruled by legal norms. However, in matters that were thought to touch on the interest of the state, the “prerogative state” could override these legal norms, above all through the agency of the police, locking up all political, racial, and social suspects in SS concentration
camps without trial. Thus, state attorneys and the police are seen as competing institutions of prosecution, while state penal institutions and concentration camps are described as competing institutions of confinement. A detailed investigation of the transfer of state prisoners can help to establish how far this picture of the “dual state” stands up to critical scrutiny.

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The author was at Downing College, Cambridge when this article was published. He is now Lecturer in Modern German History at Birkbeck College.